Citation Nr: 1801081 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-08 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1975 to April 1979. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. A hearing in this matter was held before the undersigned Veterans Law Judge in August 2017. The transcript is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking service connection for PTSD as a result of military sexual trauma while in service. The Veteran's VA treatment records show that she has been seen for PTSD. These diagnoses also note military sexual trauma (MST). Regarding her alleged military sexual trauma, the Board notes that there is no evidence of any complaints of sexual trauma in her service records. However, 38 C.F.R. § 3.304(f)(5) provides that for PTSD claims involving an alleged personal assault, the stressor may be corroborated with evidence other than the service records, and with evidence of behavior changes including (but not limited to) evidence of "deterioration in work performance," and "episodes of depression, panic attacks, or anxiety without an identifiable cause." Service records indicate that the Veteran received an Article 15 in June 1977, which she claims is a direct result of the personal assault. The Board also notes that the Veteran self-reported depression and nervousness on her separation examination in April 1979. 38 C.F.R. § 3.304(f)(5) provides that "VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred." The Veteran has not been provided with a VA medical examination in association with her claim. Remand is necessary to obtain an examination and a medical opinion as to whether the evidence of record "indicates that a personal assault occurred." Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the existence and etiology of the Veteran's PTSD, if present. The examiner should answer the following questions: a) Is it "at least as likely as not" that the claimed in-service military sexual trauma(s) occurred? A rationale for the opinion must be provided. Attention is invited to the Veteran's June 1977 Article 15 and her self-report of depression and nervousness on her April 1979 separation examination, as well as her September 2011 correspondence and August 2017 hearing testimony detailing the personal assaults. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. b) Is it "at least as likely as not" that any PTSD diagnosed is related to her active service, including her claimed military sexual trauma? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 2. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case. The Veteran and her representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).